Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC) (27 February 2006)

Introduction

This case concerns the constitutional validity of the Constitution Twelfth Amendment Act 2005 (“the Twelfth Amendment”) and the Cross-Boundary Municipalities Laws Repeal and Related Matters Act 23 of 2005 (“the Repeal Act”). In terms of these legislative enactments, the boundary between the province of KwaZulu-Natal and the province of the Eastern Cape was altered so that the area which was Matatiele Local Municipality (“Matatiele Municipality”) was transferred from KwaZulu-Natal to the Eastern Cape; new municipal boundaries were created as a consequence. In view of the importance of the constitutional issues involved in this case, we would have preferred to have had more time to consider these issues and formulate our view. Time does not permit this. The local government elections will be held on 1 March 2006. And our decision will have an impact on those elections. In view of the urgency of the matter there is a pressing need to announce our conclusions and basic reasoning within the shortest possible time.

Although on the papers there is a substantial issue as to whether the Twelfth Amendment was passed in accordance with the procedure set out in the Constitution, this point was not taken in arguable. For reasons that appear later on in this judgment, we have decided to call for further submissions on this issue. In this judgment we consider the main contention that was advanced in support of the constitutional challenge to the Twelfth Amendment, namely, that in passing the Twelfth Amendment, Parliament unconstitutionally usurped the powers of the Municipal Demarcation Board to re-determine municipal boundaries. This judgment does not decide the question whether the Twelfth Amendment was enacted in accordance with the procedure set out in the Constitution. This issue will be considered when this Court finally decides the application.

The applicants also challenged provisions of the Repeal Act. It is not appropriate to determine that challenge till the constitutionality of the Amendment Act has been finally determined. In the circumstances, we do not consider that challenge now. If the applicants succeed on that challenge in due course, just and equitable relief will have to be formulated at that stage. It is accordingly not necessary at this stage to decide whether the applicants are entitled to direct access in relation to the Repeal Act. We also do not decide the question of costs. This will be decided when the remaining issues in this case are finally determined.

The applicants, who include the Matatiele Municipality and a diverse group of business people, educators, associations and non-governmental entities residing in Matatiele, are challenging the constitutional validity of the Twelfth Amendment and the Repeal Act. The substantial relief sought by the applicants is an order that:

“2. that the Constitution Twelfth Amendment Act is unconstitutional alternatively, ultra vires in that it in effect:

re-demarcates the Matatiele Municipality;
changes the boundary and composition of the Matatiele Municipality;
moved the provincial boundary with the effect that the Matatiele Municipality is moved from its present District Municipality and Province to another District Municipality and Province;

without complying with the process set down therefor in the Constitution.

that Applicants be granted leave to bring the application for the relief in this paragraph by direct access.
that the Cross-Boundary Municipalities Laws Repeal and Related Matters Act is unconstitutional alternatively, ultra vires in that it re-demarcates the Matatiele Municipality in a manner which is inconsistent with the Constitution and ultra vires the Constitution or other national legislation.

that it is declared that in passing and signing the said Acts Parliament and the President respectively have failed to fulfill a constitutional obligation to Matatiele Municipality in that the constitutional process for re-demarcation thereof has been unconstitutionally circumvented, and that First, Second and Third Respondents have not complied with the principles of co-operative government in the management of this dispute over the re-demarcation of Matatiele Municipality.
that First, Second and Third Respondents be ordered to pay the costs of this application.
that Applicants be granted such further and/or alternative relief as to this Court seems meet.”

The President of the Republic of South Africa, the Minister of Provincial and Local Government (“the Minister”) and the Minister of Justice and Constitutional Development who are first, second and third respondents respectively, are resisting this challenge. The remaining respondents have decided to abide the decision of the Court. They are the Premier of the Eastern Cape; the Member of the Executive Council of the Province of the Eastern Cape for Local Government; the Premier of KwaZulu-Natal; the Member of the Executive Council of the Province of KwaZulu-Natal for Local Government; the Municipal Demarcation Board; Sisonke District Municipality; Alfred Nzo District Municipality; O.R. Tambo District Municipality; Umzimkulu Municipality; Umzimvubu Municipality; the fourth to thirteenth respondents respectively. The Speaker of the National Assembly and the Chairperson of the National Council of Provinces (“NCOP”) subsequently sought, and were granted, leave to intervene on the side of the respondents.

The constitutional challenge was lodged two days before Christmas, with a request that it be dealt with as a matter of urgency. It was said that the matter was one of extreme urgency and national interest which called for an expedited hearing. It was also said that the Executive had moved with great haste to complete the objects of the impugned legislation before the municipal elections, which the Matatiele Municipality had been advised were due to be held on 1 March 2006. This date had not yet been formally proclaimed at the time. It has since been proclaimed.^¹

In order to set the scene for this legal drama, it will be convenient to set out first, how Matatiele Municipality came to be established as a local municipality; second, to say a word on the cross-boundary municipalities which triggered the legislation now under challenge; and finally, to sketch the history of the re-determination of the boundaries of Matatiele Municipality which eventually led to the present constitutional challenge. This background provides the context in which the constitutional challenge must be considered.

Background

A. The establishment of Matatiele Municipality

The boundary between KwaZulu-Natal and the Eastern Cape had been an issue of some concern to the government for many years. The present-day Matatiele Municipality and the Maluti area originally constituted a single area. Matatiele was an urban development while Maluti was a rural area. In 1978, the Steyn Commission recommended that Matatiele and Maluti be separated, and that Maluti become part of the Transkei while Matatiele remain in KwaZulu-Natal. This was in line with the apartheid policy of separate development and relocating Africans into rural areas which formed homelands such as the Transkei while ensuring that whites remained in the urban areas.

When the interim Constitution commenced on 27 April 1994, it established the nine provinces in the Republic and determined their provincial boundaries by reference to magisterial districts established in terms of the Magistrates’ Courts Act 32 of 1944, as amended.^² The present-day local municipality of Matatiele was designated the magisterial district of Mount Currie, in KwaZulu-Natal. The present-day area of Maluti was included as part of the magisterial district of Matatiele, in the Eastern Cape. These provincial boundaries were adopted by the Constitution.^³ Thus the magisterial district of Matatiele as described in the Interim Constitution represents the area currently referred to as “Maluti”, while the magisterial district of Mount Currie as described in the Interim Constitution represents the area currently referred to as Matatiele Municipality.^⁴

During 1995, the government appointed the Trengove Commission to inquire into and make recommendations concerning, in part, the feasibility of: first, excluding portions of the magisterial district of Matatiele (present-day Maluti) and surrounding areas from the Eastern Cape and including them in KwaZulu-Natal; and second, excluding the magisterial district of Mount Currie from KwaZulu-Natal and including it in the Eastern Cape. A majority of the Trengove Commission recommended that the District of Mount Currie be excised from the province of KwaZulu-Natal and incorporated into the province of the Eastern Cape. A minority recommended that Mount Currie remain in KwaZulu-Natal. Neither option was adopted.

During 2000, the Board established the Matatiele Municipality in the area that was described as Mount Currie in the interim Constitution. This municipality was incorporated into Sisonke District Municipality in KwaZulu-Natal.^⁵ A small portion of Sisonke District Municipality was surrounded by Umzimvubu Local Municipality which formed part of Alfred Nzo District Municipality in the Eastern Cape.^⁶ In this manner, the present day Matatiele Municipality came to be established in KwaZulu-Natal. The magisterial district of Matatiele (the Maluti area) was demarcated by the Board to form part of a local municipality known as Umzimvubu and placed within Alfred Nzo District Municipality, which fell within the Eastern Cape.

B. Cross-boundary municipalities

The determination of provincial boundaries by reference to magisterial districts resulted in some municipal boundaries straddling provincial boundaries. To manage this situation, the Constitution was amended in order to introduce the concept of cross-boundary municipalities. Section 155(6A) of the Constitution authorised the establishment of cross-boundary municipalities.^⁷ This provision permitted a municipal boundary to be established across a provincial boundary where this could not be avoided. However, the establishment of cross-boundary municipalities was subject to the consent of the provinces affected and national legislation authorising the establishment of a cross-boundary municipality. To give effect to section 155(6A), the Local Government: Cross-Boundary Municipalities Act 29 of 2000 (“Cross-Boundary Municipalities Act”) was enacted. This statute authorised the Executive Councils responsible for local government in the provinces which share municipalities to establish cross-boundary municipalities. The provinces concerned were listed in the schedule to the statute. A total of sixteen cross-boundary municipalities were established under the scheme.

Although this list did not include any municipalities in KwaZulu-Natal, the government appears to have considered the question of the boundary between KwaZulu-Natal and the Eastern Cape as an issue that was related to cross-boundary municipalities. This was largely because certain farms, which by proclamation formed part of KwaZulu-Natal, fell within the Eastern Cape while Umzimkulu, which according to a proclamation forms part of the Eastern Cape, fell wholly within KwaZulu-Natal. The government describes Matatiele as a “cross-boundary jurisdictional enclave similar to cross-boundary municipalities.”

C. Abolition of cross-boundary municipalities

Since their inception, cross-boundary municipalities have proved to be difficult to administer. The model that was adopted to administer them was called a joint administration model, which was sanctioned by section 155(6A) of the Constitution and the provisions of the Cross-Boundary Municipalities Act. In terms of this model, the MECs for Local Government of the provinces in which the cross-boundary municipalities were established exercised joint executive authority in these municipalities. The exercise of joint executive authority in cross-boundary municipalities presented a number of political, economic and other practical problems.

These administration problems were captured as follows in a 2002 government report on cross-boundary municipalities:

“It should be stressed that the joint exercise of executive authority only applies to the MECs for local government and not to other provincial MECs and functionaries. If provinces affected by a cross-boundary municipality opt for this system, the other functionaries of these provinces would have to continue exercising their statutory powers in the areas under their jurisdiction. The result would be that legislation that is the responsibility of the local government MECs, would be jointly administered in the cross-border area whilst other provincial legislation will have to be administered in the area by the two provinces separately. The legislation of the different provinces would still apply to the separate provincial segments of the cross-boundary area. The joint administration model therefore requires consensus and uniformity between the MECs, as far as local government matters are concerned. But as far as other matters are concerned e.g. health; housing; traffic control and vehicle licensing; ambulance services; auditing etc., each province exercises its executive authority in respect of such matters independently and without consulting the other affected province.”^⁸

The problems associated with the administration of the cross-boundary municipalities led to huge financial burdens and costs and often undermined service delivery. According to the government, eight of the sixteen cross-boundary municipalities “experience service delivery challenges necessitating national support intervention.” Various reports that were commissioned on the cross-boundary municipalities recommended that the concept of cross-boundary municipalities should be abolished. As a consequence of these recommendations, the government took a decision as early as November 2002 to do away with cross-boundary municipalities and to review provincial boundaries so as to ensure that all municipalities fall in one province or the other. It was this political decision that led to the enactment of the Twelfth Amendment and the Repeal Act.

There is no explanation on the papers why the government left the implementation of this decision until about eight months before the elections were due to be held. This delay has regrettably put undue pressure on everyone who has had to deal with the Twelfth Amendment and the Repeal Act, including this Court which now has to consider important constitutional issues raised by them within a short period of time.

D. Re-determination of the boundaries of Matatiele Municipality

The convenient starting point in setting out the immediate events that led to the re-determination of Matatiele Municipality, is the August 2005 request for the re-determination of Matatiele by the Minister of Provincial and Local Government. The Minister requested the re-determination of boundaries of Matatiele Municipality in terms of section 22(1)(b) of the Local Government Municipal Demarcation Act.^⁹ In that request, the Minister requested the Board to redetermine the boundaries of Matatiele Municipality by: first, excluding Matatiele Municipality from Sisonke District Municipality in KwaZulu-Natal and incorporating it into Alfred Nzo District Municipality in the Eastern Cape; second, excluding from Matatiele the small area surrounded by Umzimvubu Local Municipality and incorporating it into Umzimvubu Local Municipality; third, excluding Maluti area from Umzimvubu Local Municipality and incorporating it into Matatiele Municipality; and finally, excluding Umzimkulu Local Municipality from Alfred Nzo District Municipality and incorporating it into Sisonke District Municipality in KwaZulu-Natal.

On 1 September 2005, the Board invited comments on the Minister’s proposal. The Board received some 3248 individual petitions and a petition of 10 000 signatures from the Matatiele/Maluti Mass Action Committee, a coalition of organisations in the Matatiele/Maluti area, in response to the proposed demarcation. After it had considered the comments, the Board, on 18 October 2005, issued its provisional re-determination of the boundaries of Sisonke District Municipality, Matatiele Municipality, Alfred Nzo District Municipality, O.R. Tambo District Municipality and Umzimvubu Local Municipality.^¹⁰

The provisional re-determination of the Board differed in a material respect from that which had been requested by the Minister. While the Minister had requested that Matatiele Municipality be included in Alfred Nzo District Municipality in the Eastern Cape, the Board proposed that the municipality remain in Sisonke District Municipality in KwaZulu-Natal. In addition, the Board proposed that Maluti be excluded from the municipal area of Umzimvubu Local Municipality and be incorporated into Matatiele Municipality in Sisonke District Municipality; that Umzimkulu Local Municipality be excluded from Alfred Nzo District Municipality and be included into the municipal area of Sisonke District Municipality; and that Umzimvubu Local Municipality be excluded from the municipal area of Alfred Nzo and incorporated into the O.R. Tambo District Municipality.

Subsequently the Minister submitted an alternative re-determination proposal to the Board. At the same time the Parliamentary Portfolio Committee on Justice and Constitutional Development requested that the Board re-publish certain municipal maps reflecting municipal areas. On 31 October 2005, the Board published a notice reflecting the Minister’s alternative proposal and the municipal maps as requested by the Portfolio Committee. This was done in General Notice 1998 of 2005 which was contained in Government Gazette No. 28189 of 31 October 2005. The Minister’s alternative proposal is set out in Schedule 1 of the Notice.

The Minister now proposed that: first, the Maluti area together with a certain district management area described as ECDMA44 and the small Matatiele area within Umzimvubu municipal area be excluded from Umzimvubu Local Municipality and incorporated into Matatiele Municipality; and second, the remainder of Umzimvubu municipal area and the new enlarged Matatiele Municipality be incorporated into Alfred Nzo District Municipality. The material difference between the proposed re-determinations of the Board and the proposal of the Minister, for present purposes, related to the location of the new enlarged Matatiele Municipality. While the Board proposed that it should be incorporated into Sisonke District Municipality in KwaZulu-Natal, the Minister proposed that it should be incorporated into Alfred Nzo District Municipality in the Eastern Cape.

It will be convenient here to interpose the legislative process that was underway in the meantime. During August 2005, the Minister of Justice and Constitutional Development gave notice of her intention to introduce the Twelfth Amendment in Parliament. The speakers of the various provincial legislatures were requested to comment on the proposed amendment. The Twelfth Amendment in its bill form was subsequently introduced in Parliament with comments from interested parties. Matatiele Municipality and the Cedarville and District Farmers Association, which are among the applicants, submitted written comments on the proposed Twelfth Amendment.

On 30 September 2005, the Twelfth Amendment Bill was introduced in the National Assembly. On 15 November 2005, the National Assembly voted in favour of the Bill with a narrow two-thirds majority, the Deputy Speaker casting the deciding vote in support of the Twelfth Amendment. On 14 December 2005, the NCOP considered the Bill in the light of the provincial mandates and passed the Bill. On 23 December 2005, the Bill was signed into law.

The Twelfth Amendment Bill re-determined the geographical areas of the provinces, primarily by reference to municipal areas as reflected in municipal demarcation maps. It incorporated the Minister’s proposal by reference to Schedule 1 and 2 of General Notice 1998 of 2005. It will be recalled that Schedule 1 of this Notice contained the Minister’s alternative proposed re-determination of Matatiele Municipality. The effect of this was that the enlarged new Matatiele Municipality would be incorporated into Alfred Nzo District Municipality in the Eastern Cape. Thus what the Minister could not achieve through the Board was to be achieved through a constitutional amendment.

In the meantime, on 26 August 2005, the Minister published the Cross-Boundary Municipalities Laws Repeal and Related Matters Bill for comments. Once again Matatiele Municipality submitted written comments on this Bill. This Bill was introduced in the National Assembly on 20 October 2005. On 13 December 2005 the National Assembly adopted the Bill. The NCOP voted to adopt the Bill on 14 December 2005, and it was signed into law on 23 December 2005.

And now to return to the re-demarcation process.

Faced with what was in effect a re-determination of the boundaries of Matatiele Municipality through a constitutional amendment, on 21 November 2005 the Board proposed a new provisional re-determination of the boundary of Matatiele Municipality. As the notice of this proposal candidly admits, it was “[b]ased on the re-alignment of provincial boundaries as reflected in the Constitution Twelfth Amendment Bill of 2005, and the imminent repeal of legislative provisions related to cross-boundary municipalities”.^¹¹ The Chairperson of the Board frankly admits that the proposed re-determination of the boundaries by the Board was “in line with the maps referred to in the two Bills.” The Board therefore proposed that the enlarged Matatiele Municipality be incorporated into Alfred Nzo District Municipality in the Eastern Cape. This notice was subsequently corrected in order to replace previous maps.^¹²

On 27 December 2005 the Board purported to publish its decision on the boundaries of certain municipalities which included Matatiele Municipality in terms of section 21(5)(c) of the Demarcation Act. In terms of this decision: first, the enlarged Matatiele Municipality was incorporated into Alfred Nzo District Municipality in the Eastern Cape; second, Umzimvubu Local Municipality formed part of Alfred Nzo District Municipality; and (c) Umzimkulu Local Municipality was incorporated into Sisonke District Municipality in KwaZulu-Natal. The fate of Matatiele Municipality was now sealed. It was effectively removed from KwaZulu-Natal and relocated into the Eastern Cape. In the same way, the people who lived in Matatiele were removed to the Eastern Cape by a constitutional amendment. It is this relocation of Matatiele Municipality from KwaZulu-Natal into the Eastern Cape which is at the heart of this litigation.

Having regard to this history of the demarcation of Matatiele Municipality, in particular, the fact that it was initiated by the Minister whose proposal was rejected by the Board but only to be given effect through a constitutional amendment, it is understandable why the applicants take the view that the Twelfth Amendment and the Repeal Act took over the function of the Board by redetermining the boundaries of Matatiele. It is also understandable why they are emotionally unable to identify themselves with the consequences of the exercise by Parliament of its authority to redefine provincial boundaries. However, the question is whether the law is on their side.

Contentions of the parties and issues presented

The constitutional challenge is directed at the Twelfth Amendment and the Repeal Act. The applicants contend that the Twelfth Amendment is unconstitutional in that it effectively re-demarcates Matatiele Municipality and removes it from KwaZulu-Natal into the Eastern Cape without compliance with the Constitution and contrary to its provisions. They contend further that the Repeal Act is unconstitutional in that it re-demarcates Matatiele Municipality in a manner that is inconsistent with the Constitution or other applicable legislation.

In resisting this challenge, the respondents contend that once the applicants concede that the Twelfth Amendment was passed in accordance with the requirements set out in section 74 of the Constitution, they cannot be heard to complain. They submit that the Twelfth Amendment has become part of the Constitution and cannot therefore be challenged on the ground that it is inconsistent with the other parts of the Constitution. In relation to the Repeal Act, they contend that neither its terms nor its effect demarcate the boundaries of Matatiele Municipality.

The applicants contend that this Court has exclusive jurisdiction to consider the constitutional challenge to the Twelfth Amendment under section 167(4)(d).^¹³ In relation to the Repeal Act, they contend that because it is inextricably interlinked with the Twelfth Amendment, they are entitled to come to this Court directly under section 167(6)(a).^¹⁴ While they accept that this Court has exclusive jurisdiction under the Constitution in relation to the Twelfth Amendment, the respondents nevertheless contend that the applicants have not made out a case for direct access under section 167(6)(a) in relation to the Repeal Act.

Jurisdiction

In terms of section 167(4)(d) of the Constitution, only this Court may “decide on the constitutionality of any amendment to the Constitution”. This Court therefore has exclusive jurisdiction over the applicants’ constitutional challenge to the Twelfth Amendment. The respondents did not contend otherwise.

The application for direct access relates to the constitutional challenge to the Repeal Act. And the question is whether it is in the interests of justice to allow the applicants to bring their Repeal Act challenge directly to this Court. As pointed out earlier, this will be decided when we consider the validity of the Repeal Act.

Constitutionality of the Twelfth Amendment

This case raises two issues in relation to the constitutionality of the Twelfth Amendment. The first relates to the applicants’ argument that the Twelfth Amendment unconstitutionally limits the authority of the Board under section 155(3)(b) of the Constitution. The second issue relates to the concession that was made in the written argument that the Twelfth Amendment was passed in accordance with the relevant constitutional procedures.

The applicants contend that the Twelfth Amendment effectively re-demarcates Matatiele and removes it from Sisonke District Municipality in KwaZulu-Natal into Alfred Nzo District Municipality in the Eastern Cape contrary to the Constitution and its provisions. This broad constitutional attack is foreshadowed in prayer 2 of the applicants’ notice of motion, which seeks an order to the effect that in enacting the Twelfth Amendment Parliament did not comply with the procedural requirements set out in section 74 of the Constitution. However, in written and oral argument, it was accepted on behalf of the applicants that the procedures required for the enactment of a constitutional amendment were complied with. Yet the papers suggest otherwise. And this calls into question the concession made. The concession in turn raises the question whether the procedures set out in section 74(8) were complied with. But first, does the Twelfth Amendment unconstitutionally usurp the powers of the Board?

A. Does the Twelfth Amendment unconstitutionally usurp the powers reserved for the Board?

The main thrust of the applicants’ argument concerning the Twelfth Amendment is that the Amendment re-determined municipal boundaries in a manner that usurped the authority reserved for the Board under section 155(3)(b) of the Constitution.

Section 155(3)(b) provides:

“155(3) National legislation must—

. . . .

(b) establish criteria and procedures for the determination of municipal boundaries by an independent authority”.

It is by now established that the independent authority referred to in section 155(3)(b) is the Board established under the Demarcation Act. In Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development and Another; Executive Council, KwaZulu-Natal v President of the Republic of South Africa and Others,^¹⁵ this Court held that the constitutional “authority to determine municipal boundaries vests solely in the Demarcation Board.”^¹⁶ That authority extends to all categories of municipality.^¹⁷

The independence of the Board is crucial to our constitutional democracy. One of the founding values of our constitutional democracy is “a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”^¹⁸This founding value must be given expression at the level of national, provincial and local government. Thus one of the objects of local government is “to provide democratic and accountable government for local communities”.^¹⁹ The purpose of section 155(3)(b) is “to guard against political interference in the process of creating new municipalities.”^²⁰ For, if municipalities were to be established along party lines or if there was to be political interference in their establishment, this would undermine our multi-party system of democratic government. A deliberate decision was therefore made to confer the power to establish municipal areas upon an independent authority.

Thus in Executive Council, Western Cape Legislature, we emphasised that in the performance of its constitutional duty to determine municipal boundaries, the Board “should be able to do so without being constrained in any way by the national or provincial governments.”^²¹ For precisely this reason, we struck down a provision in the Local Government: Municipal Structures Act 117 of 1998, which purported to give the Minister the discretion to reject a municipal boundary determined by the Board. On that occasion we said:

“Upon a proper construction, [section 6(2)] gives the Minister a discretion to decide whether to accept the recommendation of the Demarcation Board in relation to where the boundaries should be. In the exercise of this discretion the Minister may, therefore, reject a boundary determined by the Demarcation Board. Yet the scheme for the allocation of powers relating to the structure, functioning and establishment of municipalities contemplates that the Demarcation Board should determine boundaries in accordance with the criteria and procedures prescribed by the legislation contemplated in ss 155(2) and (3), and that it should be able to do this without being constrained in any way by the national or provincial governments. If s 6(2) is to have any meaning, it subjects the decision of the Demarcation Board in relation to the municipal boundaries to the discretion of the Minister. This, in my view, is impermissible. To the extent that s 6(2) of the Structures Act gives the Minister a discretion whether to accept the boundaries determined by the Demarcation Board in respect of categories of municipality, it is inconsistent with ss 155(2) and (3) of the Constitution.”^²²

In the performance of its constitutional duty, the Board is bound to apply the criteria determined by the Demarcation Act. Those criteria are set out in section 25, which sets out factors that the Board must take into account in determining municipal boundaries. And these are:

“(a) the interdependence of people, communities and economics as indicated by─

(i) existing and expected patterns of human settlement and migration;

(ii) employment;

(iii) commuting and dominant transport movements;

(iv) spending;

(v) the use of amenities, recreational facilities and infrastructure; and

(vi) commercial and individual linkages;

(b) the need for cohesive, integrated and unfragmented areas, including metropolitan areas;

(c) the financial viability and administrative capacity of the municipality to perform municipal functions efficiently and effectively;

(d) the need to share and redistribute financial and administrative resources;

(e) provincial and municipal boundaries;

(f) areas of traditional rural communities;

(g) existing and proposed functional boundaries, including magisterial districts, voting districts, health, transport, police and census enumerator boundaries;

(h) existing and expected land use, social, economic and transport planning;

(i) the need for co-ordinated municipal, provincial and national programmes and services, including the needs for the administration of justice and health care;

(j) topographical, environmental and physical characteristics of the area;

(k) the administrative consequences of its boundary determination on─

(i) municipal creditworthiness;

(ii) existing municipalities, their council members and staff; and

(iii) any other relevant matter;

(l) the need to rationalise the total number of municipalities within different categories and of different types to achieve the objectives of effective and sustainable service delivery, financial viability and macro-economic stability.”

Members of the Board have particular skills and expertise that are appropriate to the factors that the Board has to take into account in determining municipal boundaries. This is apparent from the qualifications, expertise and knowledge that members of the Board must have. They are required to have qualifications or experience or knowledge in:

“(a) local government generally; or

(b) any of the following:

(i) development economics;

(ii) integrated development planning;

(iii) community development;

(iv) traditional leadership and traditional communities;

(v) local government and municipal administration;

(vi) municipal finance;

(vii) municipal services;

(viii) social or economic geography;

(ix) town and regional planning;

(x) legal and constitutional matters affecting local government;

(xi) land survey, cartography and geographical formation systems;

(xii) public health care; or

(xiii) transport planning.

(2) The following persons are disqualified from becoming or remaining a member of the Board:

(a) an unrehabilitated insolvent;

(b) a person who is placed under curatorship;

(d) a person who after 4 February 1997 has been convicted of an offence and

sentenced to imprisonment without the option of a fine for a period of not less than 12 months.

(3) A disqualification in terms of subsection (2)(d) ends five years after the imprisonment has been completed.”^²³

The expertise, knowledge and experience required of its members ensure that the Board is eminently qualified to perform the function of determining municipal boundaries. The question is whether the Twelfth Amendment unconstitutionally usurps this function. The answer to this question depends in the first place upon the purpose and effect of the Twelfth Amendment and, in the second place, on the nature and the scope of the powers of Parliament to alter provincial boundaries.

There can be no question that the purpose of the Twelfth Amendment is “to re-determine the geographical areas of the nine provinces of the Republic of South Africa”. The Preamble to the Twelfth Amendment makes this abundantly clear. There also can be no question that in terms of section 44(1)(a)(i),^²⁴ read with section 74(3)(b)(ii),^²⁵ Parliament has the constitutional authority to alter provincial boundaries. Nor can there be any question that the effect of the Twelfth Amendment is to re-determine the boundaries of Sisonke and Alfred Nzo District Municipalities.

Section 1 of the Twelfth Amendment redefines the geographical areas of the nine provinces by reference to municipal areas, a departure from the previous scheme which defined provincial boundaries by reference to magisterial districts. These geographical areas are reflected in Schedule 1A and are described as “compris[ing] the sum of the indicated geographical areas reflected in the various maps referred to in the Notice listed in Schedule 1A.” The effect of this re-determination of provincial boundaries is that the area previously known as Matatiele Municipality is relocated from Sisonke District Municipality in KwaZulu-Natal and incorporated into the Eastern Cape while Umzimkulu Local Municipality is relocated from Alfred Nzo District Municipality in the Eastern Cape to KwaZulu-Natal.

The Twelfth Amendment therefore has the effect of re-determining the boundaries of Sisonke and Alfred Nzo District Municipalities. The crux of the applicants’ complaint is that Parliament cannot do this because it amounts to performing the functions that vest in the Board under section 155(3)(b). The issue that arises from the applicants’ contention is the following: Does Parliament, in the exercise of its constitutional authority to redefine provincial boundaries, have the authority to alter municipal boundaries?

The Board’s authority to determine municipal boundaries is not unlimited. It is

limited, for example, by Parliament’s authority to establish provincial boundaries. This is implicit in section 155(6A) of the Constitution and explicit in section 25(e) of the Demarcation Act. In terms of section 155(6A), when the Board in exercising its powers considers it necessary to establish a municipal area across a provincial boundary, it requires both national and provincial legislations to do so.^²⁶ In terms of section 25(e) of the Demarcation Act, the Board is required to have regard to provincial and municipal boundaries when it determines municipal boundaries.^²⁷ It is plain from these two provisions that the authority of the Board to determine municipal boundaries is limited by the authority to redefine provincial boundaries. And the authority to redefine provincial boundaries vests in Parliament.

Once a decision was taken to redefine provincial boundaries by reference to municipal areas and to abolish the concept of cross-boundary municipalities, the provincial boundaries had to be redefined in such a manner that no municipality would fall into two provinces. This process necessarily involved a decision as to the province in which the municipalities should be located. It was therefore inevitable that the alteration of provincial boundaries would impact on municipal boundaries. This is implicit in the power to alter provincial boundaries. It is trite that the power to do that which is expressly authorised includes the power to do that which is necessary to give effect to the power expressly given.^²⁸ The power of Parliament to redraw provincial boundaries therefore includes the power that is reasonably necessary for the exercise of its power to alter provincial boundaries.

By contrast, the power of the Board to determine municipal boundaries does not include the power to determine provincial boundaries. This is so because the power to alter provincial boundaries is expressly reserved for Parliament, which is required to comply with stringent procedures in order to effect an alteration of boundaries. In addition, section 25(e) of the Demarcation Act expressly makes the power of the Board subject to provincial boundaries. It is quite clear that if the demarcation powers of the Board are unlimited, as contended by the applicants, they are inconsistent with those conferred on Parliament to alter provincial boundaries. The proper approach in such a case is to place a construction on the Board’s authority that would remove the inconsistency. In my view section 103(3) of the Constitution as introduced by the Twelfth Amendment and section 155(3)(b) of the Constitution can be harmonised by understanding that once provincial boundaries have been redefined, it is the task of the Board to demarcate municipal boundaries in terms of the Demarcation Act.

There is some suggestion in the applicants’ founding affidavit and written argument that the Twelfth Amendment and the Repeal Act apply only to cross-boundary municipalities. As Matatiele was never declared a cross-boundary municipality under section 155(6A) of the Constitution and other relevant legislation, the suggestion goes, the impugned legislation does not apply to it. This point was pursued somewhat faintly in argument, it being accepted that the laws under attack do not deal “solely” with cross-boundary municipalities.

Once it is accepted that the Twelfth Amendment and the Repeal Act do not deal solely with cross-boundary municipalities that is the end of the point. The Twelfth Amendment declares that its purpose is “to re-determine the geographical areas of the nine provinces of the Republic of South Africa; and to provide for matters connected therewith”, while the Repeal Act declares its purpose as, amongst other things, to “provide for consequential matters as a result of the re-alignment of former cross-boundary municipalities and the re-determination of the geographical areas of provinces; and provide for matters connected therewith.” The purpose of the Twelfth Amendment and the Repeal Act was to develop a new criterion for determining provincial boundaries, namely, municipal areas as opposed to magisterial districts. This new criterion applies not only to provinces that had cross-boundary municipalities but to all provinces, including those that did not have such municipalities. It follows therefore that the argument that the impugned laws apply only to cross-boundary municipalities falls to be rejected.

Section 41

The applicants also challenged the Twelfth Amendment on grounds that in enacting it, Parliament and the President failed to fulfil their constitutional obligation. This obligation was said to be comprehended by the provisions of section 41 of the Constitution, which deal with co-operative government. No submissions were addressed to us in this regard during the hearing. When counsel for the applicants was pressed to make submissions, he indicated that he did not have any submissions on the point but was not abandoning it.

It is difficult to make out what the precise complaint is in this regard. What is clear, however, is that section 41(2) contemplates that an Act of Parliament will be enacted that will establish structures and institutions to promote and facilitate intergovernmental relations. In addition, this statute will provide appropriate mechanisms and procedures to facilitate settlement of intergovernmental disputes. The respondents submitted that this legislation is the Intergovernmental Relations Framework Act 13 of 2005 (“the Framework Act”).^²⁹ The applicants did not contend otherwise. Nor could they.

In its long title and preamble, the Framework Act provides:

“To establish a framework for the national government, provincial governments and local governments to promote and facilitate intergovernmental relations; to provide for mechanisms and procedures to facilitate the settlement of intergovernmental disputes; and to provide for matters connected therewith.

. . . .

And whereas section 41(2) of the Constitution requires an Act of Parliament—

to establish or provide for structures and institutions to promote and facilitate intergovernmental relations; and
to provide for appropriate mechanisms and procedures to facilitate the settlement of intergovernmental disputes”.

Section 2(2) provides that the Framework Act does not apply to Parliament and the provincial legislatures. On its face, therefore, this statute excludes Parliament and provincial legislatures from its ambit. It follows that the submission relating to co-operative government must fail. We are not called upon, and we express no view on whether the Framework Act can constitutionally exclude from its ambit, Parliament and provincial legislatures. That is not the question before us.

To sum up, therefore, the powers of the Board under section 155(3)(b) are subject to the power of Parliament to redefine provincial boundaries. Thus construed, there is no conflict between section 103(3) of the Twelfth Amendment and section 155(3)(b) of the Constitution. However, that is not the end of the matter. There is a substantial question as to whether the correct procedure was followed in the enactment of the Twelfth Amendment.

B. Procedural requirements

Sections 73 to 82 of the Constitution set out the constitutional framework for the “national legislative process”. Section 74 deals with bills that amend the Constitution. Subsections (3) and (8) deal with a constitutional amendment that alters provincial boundaries, powers, functions or institutions. And these subsections provide:

Subsection 74(3)─

“Any other provision of the Constitution may be amended by a Bill passed—

(a) by the National Assembly, with a supporting vote of at least two thirds of its members; and

(b) also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment—

(i) relates to a matter that affects the Council;

(ii) alters provincial boundaries, powers, functions or institutions; or

(iii) amends a provision that deals specifically with a provincial matter.”

Subsection 74(8) ─

“If a Bill referred to in subsection (3)(b), or any part of the Bill, concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned.”

A bill that alters provincial boundaries must therefore be passed: first, by the National Assembly by a two-thirds majority; and second, by the NCOP with a supporting vote of at least six provinces. But the NCOP may not pass the bill or the relevant part “unless it has been approved by the legislature or the legislatures of the province or provinces concerned.” It appears from the provisions of subsection 74(8) that provinces have a veto power in relation to a bill that alters their boundaries. It is not difficult to imagine the purpose of this provision. Its purpose is to ensure that the boundaries of a province are not reduced without its consent. This protects the territorial integrity of a province.

In addition, the alteration of a provincial boundary may have the effect of relocating an entire community from one province to another province. And this may implicate the fundamental rights of the individual men and women who reside in the province. In terms of section 21(3) of the Constitution “[e]very citizen has the right to enter, remain in and reside anywhere in, the Republic.” This provision protects the rights of people of Matatiele to remain in the province of KwaZulu-Natal if they should choose to do so. But, like any of the fundamental rights guaranteed in the Bill of Rights, this right is subject to limitation under section 36(1). Once an individual has chosen to reside in KwaZulu-Natal, that individual is entitled to remain in that province subject to the provisions of the Constitution. Such an individual may not be legislated out of that province into another province contrary to the provisions of the Constitution. It is this right that is at the heart of the protection offered by section 74(8). The provincial legislature is given the power to protect the right of its residents under section 21(3) to remain in their province by exercising its right to veto a constitutional amendment that seeks to alter its provincial boundaries, if it considers it to be in the interests of the province to do so.

Compliance with section 74(8) in turn raises the question whether the provisions of section 118(1)(a) of the Constitution must be complied with in the process of considering and approving a constitutional amendment under section 74(8). Section 118(1) of the Constitution provides:

“(1) A provincial legislature must—

facilitate public involvement in the legislative and other processes of the legislature and its committees; and
conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken—
1. to regulate public access, including access of the media, to the legislature and its committees; and
2. to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person.”

This Court has not yet construed section 118(1)(a) or the scope of its application. This provision raises, in particular, the question whether the process of considering and approving a proposed constitutional amendment under section 74(8) amounts to a “legislative process” or “other process” of a provincial legislature within the meaning of section 118(1)(a). In addition, it is not entirely clear what the phrase to “facilitate public involvement” means in the context of section 118(1)(a).

Recently, in the case of Mary Patricia King and Others v Attorneys Fidelity Fund Board of Control and Another,^³⁰ the SCA commented on the phrase to “facilitate public involvement” in the context of Section 59 of the Constitution.^³¹ It said:

“‘Public involvement’ is necessarily an inexact concept, with many possible facets, and the duty to ‘facilitate’ it can be fulfilled not in one, but in many different ways. Public involvement might include public participation through the submission of commentary and representations: but that is neither definitive nor exhaustive of its content. The public may become ‘involved’ in the business of the National Assembly as much by understanding and being informed of what it is doing as by participating directly in those processes. It is plain that by imposing on Parliament the obligation to facilitate public involvement in its processes the Constitution sets a base standard, but then leaves Parliament significant leeway in fulfilling it. Whether or not the National Assembly has fulfilled its obligation cannot be assessed by examining only one aspect of ‘public involvement’ in isolation of others, as the appellants have sought to do here. Nor are the various obligations s 59(1) imposes to be viewed as if they are independent of one another, with the result that the failure of one necessarily divests the National Assembly of its legislative authority.”^³²

The correctness of this case was not argued in this Court. It is therefore not desirable to comment on the correctness of the passage cited above, in particular, the SCA’s statement that “[t]he public may become ‘involved’ in the business of the National Assembly as much by understanding and being informed of what it is doing as by participating directly in those processes.” It seems to me that it is arguable that in the process of considering and approving a proposed constitutional amendment under section 74(8), a provincial legislature must at a bare minimum provide the people who might be affected by the alteration of its boundary an opportunity to submit oral or written commentary and representations on the proposed amendment.

But it was conceded on behalf of the applicants that the procedures set out for the enactment of a constitutional amendment were complied with. The question is whether it is appropriate for this Court to investigate whether the provisions of the Constitution were complied with in the light of this concession. As a general matter, a court should decide issues raised by the parties in their pleadings and in argument. They should not embark upon a judicial frolic and decide matters that are not before them. The adjudication of disputes between the parties is not an occasion to engage in an academic exercise of deciding a whole range of issues that are not before a court. But, like all general rules, this too is subject to exceptions. It must yield to the interests of justice.

Here, we are concerned with a legal concession. It is trite that this Court is not bound by a legal concession if it considers the concession to be wrong in law. Indeed, in Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others,^³³ this Court firmly rejected the proposition that it is bound by an incorrect legal concession, holding that “if that concession was wrong in law [it] would have no hesitation whatsoever in rejecting it.”^³⁴ Were it to be otherwise, this could lead to an intolerable situation where this Court would be bound by a mistake of law on the part of a litigant. The result would be the certification of law or conduct as consistent with the Constitution when the law or conduct in fact is inconsistent with the Constitution. This would be contrary to the provisions of section 2 of the Constitution which provides that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid”.

Thus where on the papers before it, there is doubt as to whether a particular law or conduct is consistent with the Constitution, this Court may be obliged to investigate the matter. This would be particularly so where, as here, an important constitutional issue is involved. In the Executive Council, Western Cape Legislature v President of Republic of South Africa^³⁵ this Court, subsequent to the hearing, realised that there were questions regarding section 235(8) of the interim Constitution that had not been addressed by counsel in their written or oral argument. Because of the importance of these questions, the Court considered it necessary to afford the parties an opportunity to make submissions on those questions and the Court the benefit of debating them. The parties’ legal representatives were therefore invited urgently to canvass the particular issues at a further hearing which was set down at fairly short notice. This is the course that must be followed in this case. It is in the interests of justice that these important issues, which may well have a bearing on the validity of the Twelfth Amendment, be investigated.

On the papers, there are doubts as to whether the Twelfth Amendment was passed in accordance with the appropriate constitutional procedures. In their notice of motion, the applicants sought an order declaring, amongst other things, that the Twelfth Amendment was unconstitutional because it altered provincial boundaries without complying with the process set forth in the Constitution. It appears from the affidavit deposed to by the Speaker of the KwaZulu-Natal Provincial Legislature filed in an attempt to establish compliance with the procedures set out in the Constitution that the KwaZulu-Natal Legislature did not invite written or oral submissions from the people of Matatiele, nor did it hold any public hearings on the proposed amendment. In their replying affidavit, the applicants confirm that public hearings were not held by the KwaZulu-Natal Legislature for the people of Matatiele. In the context of public participation, the applicants allege that:

“14.10 As far as the public participation of the people of the Matatiele Municipality is concerned it is to be noted that according to Noxolo Kiviet public hearings were held at various places in the Eastern Cape Province. . . . However, no meetings called by any government were held in any place in the Matatiele Municipality.

14.11 The Speaker of the KwaZulu-Natal Legislature does not dispute [the] allegations relating to public meetings.”

The procedure followed by the KwaZulu-Natal Legislature must be contrasted with the steps taken by the majority of the provincial legislatures in the process of considering and approving the Twelfth Amendment Bill. According to the record before this Court, the legislative committees of the Eastern Cape, Gauteng, Limpopo, Mpumalanga, Northern Cape and North West Provinces all held public hearings in the affected communities. It is somewhat difficult to compare the nature of these hearings because the affidavits vary in their level of detail and in their inclusion of relevant annexures. However, we know that Eastern Cape, Gauteng, Northern Cape and North West considered both written and oral submissions. North West and Gauteng held at least one joint public hearing in a cross-boundary area. Mpumalanga’s Portfolio Committee on Local Government and Housing used local radio stations to invite people to the hearings as well as to committee meetings. The committees of the North West, Mpumalanga and Eastern Cape Legislatures drafted detailed reports of the public hearings.^³⁶

Based on the record before this Court, it appears that Matatiele Municipality and the people of Matatiele were not afforded an opportunity to be heard by the provincial legislature of KwaZulu-Natal on the impending constitutional amendment to alter its boundary. The KwaZulu-Natal Legislature, alone amongst those required to approve or reject the Twelfth Amendment in terms of section 74(8)^³⁷ did not hold public hearings, publicise committee meetings in newspapers or radio, or invite written submissions from the public and relevant stakeholders. The KwaZulu-Natal Speaker’s affidavit does not refer to the public at all, except to note that the relevant Standing or Portfolio Committee has the discretion to call for a public hearing on matters referred to it by the NCOP Committee.

Now if the provisions of section 74(8) require compliance with section 118(1)(a) and if the provisions of section 118(1)(a) require the provinces to afford the communities affected by the alteration of the provincial boundaries a fair opportunity to make representations as to why their province should not consent to the alteration of its boundary, the record before us establishes that the KwaZulu-Natal Legislature did not hold any hearings or afford the applicants any opportunity to submit written representations on the question of whether it should consent to the alteration of the boundaries. And if this amounts to a failure to comply with the provisions of section 118(1)(a) and thus section 74(8), the question which arises is whether this renders the approval by the KwaZulu-Natal Legislature invalid and thus the Twelfth Amendment invalid insofar as it relates to KwaZulu-Natal. Now these are issues of grave importance. They lie at the very heartland of our participatory democracy and the power of the provinces to protect their territorial integrity.

In my view, the provisions of sections 74(8) and 118(1)(a) are crucial to the determination of the question whether the Twelfth Amendment was enacted in accordance with the procedure set out in the Constitution. In terms of section 44(4) of the Constitution, “[w]hen exercising its legislative authority, Parliament . . . must act in accordance with, and within the limits of, the Constitution.” And in terms of section 2, “the Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid”.

However, these issues cannot be decided without the benefit of argument and debate on them. The present application cannot be finally decided without hearing the provincial legislature of KwaZulu-Natal and the parties on the meaning and the scope of the provisions of sections 74(8) and 118(1)(a) and their implications for the validity of the Twelfth Amendment.

Ordinarily, these issues should be heard before we deliver judgment on the other issues involved in the case. But we are faced with the reality that the local government elections are to be held in less than two days. And the decision of this Court on the validity of the Twelfth Amendment may have an impact on those elections. The question of the validity of the Twelfth Amendment, however, depends ultimately on the scope and effect of the provisions of sections 74(8) and 118(1)(a) of the Constitution. Yet we cannot decide these issues without the benefit of argument and debate on them. It is impractical to do so before the elections.

But the elections are in the minds of the people of Matatiele. They must be anxious to know whether when they go to the polls they will do so in KwaZulu-Natal or the Eastern Cape. We are also mindful of the fact, and the record indicates, that a majority of the people of Matatiele do not want to relocate to the Eastern Cape. But answers to these questions depend on the validity of the Twelfth Amendment, and in particular, whether the Twelfth Amendment was enacted in accordance with the procedures set out in the Constitution. This point was conceded on their behalf. Because we doubt the correctness of this concession we have decided to call for written submissions on whether the constitutional procedures set out for the enactment of the Twelfth Amendment were complied with.

The question is whether we should postpone the elections in the affected areas pending our decision on the validity of the Twelfth Amendment. This raises very complex practical problems. We do not know whether the areas of Matatiele Municipality and Maluti still exist in their old form. Under the Twelfth Amendment read with the Repeal Act and the determination of 27 December 2005 by the Municipal Demarcation Board, both of these areas now fall under the Eastern Cape and in the Alfred Nzo District Municipality. If no elections are held in these areas, it is not clear which province will be responsible for their administration. Nor do we know what will be the effect of restoring old Matatiele to Sisonke District Municipality in KwaZulu-Natal and leaving Maluti to the Eastern Cape. We have not had the benefit of any argument on these issues. And we cannot resolve them without the benefit of submissions by the parties and the Electoral Commission.

It may be that we will need to determine the electoral consequences if the Twelfth Amendment or the Repeal Act is declared invalid. The advice of the Electoral Commission will be helpful in determining the appropriate course in that event. The Electoral Commission must therefore be joined.

There is another matter. It is not desirable to disrupt elections. As a general matter, this must be resorted to only when it is in the interests of justice to do so. It will generally be the case where the postponement of elections is unavoidable. This will be the case, for example, where the adverse consequences of holding elections far exceed those that will ensue if the elections are not held. This determination can only be made after hearing submissions on such consequences. There is nothing on the record to indicate that the adverse consequences of holding elections far exceed those that would ensue from postponing them.

In the context of this case, if it had been apparent on the papers that there may have been a violation of the Constitution, we would have had no hesitation in stopping the elections in their tracks. For there would be no point in holding elections that will be set aside in due course. But in this case, it is not that apparent as we have yet to decide the scope and effect of sections 74(8) and 118(1)(a) of the Constitution. And more importantly, we need to hear the Legislature of KwaZulu-Natal on these issues.

We are not unmindful of the concerns of the people of Matatiele. These concerns are legitimate. If the Twelfth Amendment is not valid in relation to KwaZulu-Natal, then the people of Matatiele are entitled to remain in Sisonke District Municipality in KwaZulu-Natal and cast their vote in that province until a properly enacted constitutional amendment is in place. In this judgment we do not decide the validity of the Twelfth Amendment. Nor do we decide whether the people of Matatiele should relocate into the Eastern Cape. Therefore the present position is no more than a holding position until a final decision is made on the constitutional validity of the Twelfth Amendment. It is only then that the fate of the people of Matatiele will finally be decided.

In all the circumstances, the elections must go ahead as planned. If the question of whether fresh elections have to be held arises, it will have to be determined in the light of the final decision on the constitutional validity of the Twelfth Amendment.

But in the meantime, the people of Matatiele are entitled to know the answer to the primary contention that they advanced in support of their constitutional challenge to the Twelfth Amendment. They contended that the Twelfth Amendment re-determined municipal boundaries in a manner that usurped the authority reserved for the Municipal Demarcation Board under section 155(3)(b) of the Constitution. The answer to this question is that Parliament has the constitutional authority to redraw the provincial boundaries and to affect municipal boundaries insofar as this is necessary for the purpose of altering the provincial boundaries.

The Court is unanimous in holding that its work has not been facilitated by the lack of candour on the part of government as to why it was regarded as appropriate to place Matatiele Municipality in the Eastern Cape. In keeping with the constitutional values of accountability, responsiveness and openness, the Directions will give the second and third respondents the opportunity to provide further information concerning the objectives sought to be pursued by the relocation of Matatiele to the Eastern Cape. Such information could be of considerable assistance to the Court in finalising this matter.

In the event, we hold that in altering provincial boundaries, the Twelfth Amendment did not usurp the powers conferred upon the Municipal Demarcation Board by section 155(3)(b) of the Constitution and is therefore not inconsistent with the Constitution on that ground.

In all the circumstances, the following further directions are made:
1. The application is set down for further hearing on 30^th March 2006 to consider the following issues:
  1. Do the provisions of section 74(8) of the Constitution require a provincial legislature whose boundary is being redrawn by a proposed constitutional amendment to comply with the provisions of section 118(1)(a) of the Constitution.
  2. If the answer to paragraph (a)(1) above is in the affirmative, what does section 118(1)(a) require and did the provincial legislatures of KwaZulu-Natal and the Eastern Cape comply with the provisions of section 118(1)(a) of the Constitution.

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South Africa: Constitutional Court

Matatiele Municipality and Others v President of the Republic of South Africa and Others (1) (CCT73/05) [2006] ZACC 2; 2006 (5) BCLR 622 (CC) (27 February 2006)